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D.C. settles for $10 million in foster care abuse case

By Henri E. Cauvin
Washington Post Staff Writer
Monday, November 8, 2010; 11:43 PM

An abusive foster mother nearly cost Rafael Pearson his life, and now the District has agreed to pay $10 million for placing him with the troubled woman, whose beatings left the boy with massive brain damage.

Rafael was just a few days old when he was taken from his drug-addicted mother and placed in the foster home in fall 2005. Beaten and shaken by his foster mother, the baby suffered catastrophic brain damage. He was on life support for days, not expected to survive. More than five years later, he remains profoundly disabled. He can sense light and shadows and movement but otherwise his vision is extremely limited.

The settlement, to be paid out in three installments, beginning with a $5 million payment this month, is one of the largest the District has ever agreed to.

But with a lifetime of round-the-clock care ahead of Rafael, the settlement is hardly a windfall, his attorneys say - the agreement is structured to ensure that Rafael's needs are funded for as long as he lives.

The lawsuit, filed in 2007 after the foster mother, Tanya Jenkins, was tried and sentenced to 12 years for cruelty to children, sought $50 million from the District. The suit was about to go to trial in early August in D.C. Superior Court when the parties indicated that they were closing in on a settlement.

Over the next three months, the agreement took shape, and late Friday, after a few final tweaks, the judge in the case, Judith N. Macaluso, approved the pact.

Sitting in the first row of Courtroom 415, in his tiny white Nikes and his black reclining wheelchair, was Rafael. He occasionally uttered sounds, but he cannot speak. Next to him was his grandmother, Sylvia Pearson, 57, who filed the lawsuit on his behalf and who has been his champion since the day in late October 2005 when it looked like Rafael would not survive.

"You can't replace what would have been a great, normal life," Pearson said after the hearing, "but I have faith in him and his ability to progress more rapidly than people expect."

Already, Raffy, as his grandmother calls him, has defied expectations. He made it out of Children's Hospital. He made it out of the Hospital for Sick Children. And by early next year, he is expected to leave the nursing home in Dunn Loring where he has lived for the past five years.

If all goes according to plan, Raffy will move into his grandmother's Fairfax Station home, which is being fitted with an elevator and other accommodations, and where he will have a home health aide around the clock.

It could, of course, have been worse. But it also could have been altogether different for Raffy, born Sept. 9, 2005, in a motel in Northern Virginia.

When his mother, Renee Pearson, brought him to Virginia Hospital Center later that day, he was 5 pounds 14 ounces and had traces of cocaine in his system. Concerned, the hospital called child welfare officials in the District, where Renee Pearson said she lived. The social worker couldn't verify the the mother's address in Northwest Washington and called the baby's grandmother.

Sylvia Pearson, who had watched her daughter succumb to drugs and the streets, told the social worker to take the baby. Pearson had already adopted one of her daughter's children, and her son had adopted the other. Now, they would have to find a way to help Raffy, who was going to stay in foster care while everything was sorted out.

He ended up with Tanya Jenkins, a new foster parent who was unemployed and lived in Southeast Washington with her 2-year-old son and her boyfriend. Earlier that year, another infant had been placed with Jenkins, but she had sent the child back after five weeks, saying she had health problems that made it difficult to care for the small child.

Despite the red flag, the Child and Family Services Agency came to Jenkins five months later when they needed a home for Raffy. Jenkins agreed but said she didn't have the money to care for the child and would need CFSA to rush the assistance that is routinely provided to help with costs such as additional food.

But even without the additional child, she was struggling, according to testimony at her trial. She told a neighbor that the financial assistance from the District would keep her from being evicted.

Once Raffy arrived, the stress mounted for Jenkins, according to the neighbor, who testified that Jenkins was complaining about never sleeping. Meanwhile, the city's long-troubled child welfare agency wasn't keeping tabs on Jenkins or the baby who had been entrusted to her. A social worker should have visited every week for the first eight weeks. The agency made one visit during the 43 days Raffy was in the home.

It was another harrowing episode in the annals of the District's beleaguered child welfare system, and when they filed suit, Pearson's attorneys, Sidney Schupak and Michelle A. Parfitt of Ashcraft & Gerel, planned to put the entire system on trial.

Instead, the District agreed to pay one of the largest settlements in its history, as well as $2 million in attorneys' fees.

Robert J. Spagnoletti, who was the District's attorney general under Mayor Anthony A. Williams (D), said a settlement as large as the one in this case had never crossed his desk. "It's a very big settlement," but not necessarily unreasonable, said Spagnoletti, now a partner at Schertler & Onorato.

Patrick M. Regan, a leading plaintiffs attorney in the District, called the settlement a "significant" sum of money, but said the amount had to be viewed in the context of the needs the child and his family will face over a lifetime. "It's fair," Regan said.

D.C. Attorney General Peter Nickles, who was involved in the settlement negotiations, did not return a call today seeking comment.

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